38 posts from November 2016

11/30/2016

This is from a while back, but even more relevant now -- at Liberty Law Blog, Mark Pulliam, Don't Thread on Me (analyzing in detail the Texas Supreme Court's decision in Patel v. Texas Department of Licensing and Regulation [the eyebrow-threading case], including the now-famous concurrence by Justice Don Willett). From the introduction:

The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation, striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.

The long-awaited decision from the Texas Supreme Court in the school finance case, Morath v. Texas Taxpayer and Student Fairness Coalition, was issued on May 13, 2016. (The case was argued over eight months earlier.) The court’s jargon-laden 100-page (!) decision can be summarized with this sentence: “Despite the imperfections of the current school funding regime, it meets minimum constitutional requirements.”

The unanimous decision, written by Justice Don Willett, is being described by headline writers as a “win” for the state, but in reality it is a mixed bag. ...

In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues. First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it. The highest honors from our legal and academic establishment all go to justices who begin or drift left. Justice Scalia, of course, was impervious to all such temptations.

But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.

...

Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written. Originalism is gaining ground because of its intellectual power and a justice can deepen its attractiveness through his or her writings. ...

(With special positive mention of two of the "Trump 21").

REMINDER: Andrew Hyman has been adding to his outstanding resources page on the potential nominees.

In the 2009 OLC Opinion concerning President Obama’s receipt of the Nobel prize, now-First Circuit Judge Barron wrote that:

The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.”

No analysis whatsoever followed about why the President “surely” hold such a position. One of my biggest pet peeves in legal writing is the word “certainly,” or its close cousin, “surely.” It is conclusory language that papers over the fact that the writer hasn’t made an actual argument. Such is the case here with Barron’s opinion. Fortunately, others have given this some thought.

I have long been persuaded by Seth Barrett Tillman’s tireless research, based on the text of the Constitution, that the President is not a “person holding any office of profit or trust.” Therefore, the Emoluments Clause does not apply to him. [Plus, Laurence Tribe admits that Professor Tillman is "no kook"].

And then the more difficult question:

But could Congress pass a statute regulating the President’s business interests? No. Congress can’t impose additional qualifications on the Presidency beyond those already in the Constitution, such as the Natural Born Citizen Clause. This is consistent with the Court’s holding in U.S. Term Limits v. Thornton, that states cannot impose additional criteria for members of Congress. The argument for executive independence, however, is even stronger. Individual members of Congress can easily recuse from votes that raise conflicts of interest; the President cannot.

In 1972, the Office of Legal Counsel reached this same conclusion in its analysis how then-extant ethical laws impacted Vice President Rockefeller’s business interests. (The opinion was authored by then Deputy Attorney General, and now D.C. Circuit Judge, Laurence Silberman).

The President-elect promised on the campaign trail to replace Justice Scalia with a judge like Justice Scalia (and Justice Thomas). But what does it mean to be like Justice Scalia? It surely means more than just being "conservative." This study proposes three empirical measures of what made Justice Scalia Justice Scalia. First, how often does a judge promote or practice originalism? Second, how often do they cite to Justice Scalia's non-judicial writings, writings that were not about the substance of the law but about how to think about interpreting the law. And third, how often does a judge write separately, something Justice Scalia did 25.9% of the time when he was not writing the majority opinion over his last 20 years on the court. The study then applies those measures to potential nominees, and provides a metric for determining just how Scalia-like they are: the Scalia Index Score. While not without its limitations, this metric provides an objective way to evaluate how much a potential nominee is like the famous jurist they may replace.

11/27/2016

On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.

And in conclusion:

Originalists should recognize the consistent view of the common law courts and the Founders, which was that the meaning of liberty included the right to do all those acts which are not harmful to others.

Proposals for the reform or abolition of the Electoral College have been advanced from the early Republic onwards to the present. One of the perceived problems in our existing system has been the possibility (and occasional occurrence) of a “faithless elector” – that is, an elector who is pledged to vote for one Presidential candidate, but who in fact votes for another or does not vote at all. Several States have sought to cure this problem by enacting the Uniform Faithful Presidential Electors Act (UFPEA). This article reviews the background, history and purposes of the Electoral College. It considers both American and British views and practices in the late eighteenth century and after, together with relevant case law and legal scholarship. It concludes that the UFPEA is unconstitutional.

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights to which everyone was entitled, such as the right to governance under “the rule of law.” Property was not immune from regulation, but that regulation had to be for the purpose of promoting “the general Welfare,” not the interests of specific groups or people. It is time for the Supreme Court to revisit Anglo-American legal history and to re-examine its precedents in light of what that history teaches.

... [I]t seems quite likely that there are at least some areas of constitutional law where the public meaning of the constitutional text underdetermines legal effect. Does the existence of a significant set of construction zones imply that originalism is indistinguishable from living constitutionalism [as Professor Segall suggests]? The answer to this question is obvious: "no." First, the original meaning is not radically indeterminate--it is moderately underdeterminate at best. Second, even with respect to those provisions that are underdeterminate, the text rules out some of the possible answers as inconsistent with the original meaning: this is H.L.A. Hart's idea of the "core" and "penumbra." Third, it is not necessarily the case that originalists will adopt the same approaches to constitutional construction in the zones of underdeterminacy that living constitutionalists use with respect to the whole text: this third point requires that we examine the various forms of living constitutionalism and the options for originalist constitutional construction--a task beyond the scope of a blog post. Nonetheless, we should observe that originalists will need to adopt a theory of constitutional construction in the zone of underdeterminacy that is consistent with the justification they offer for originalism itself. For example, if originalism is justified because living constitutionalism undermines the rule of law by creating an unconstrained Supreme Court, then the correlative approach to constitutional construction will not be: "Supreme Court do whatever you want if the text is underdeterminate." A rule of law approach to constitutional construction might emphasize respect for baseline legal norms and a strong doctrine of stare decisis. Or one might adopt the "presumption of liberty approach" advocated by my colleague, Randy Barnett.

And on the future of originalism:

Whether originalism has legs is a different question. I will say this: in the early 80s when I first encountered originalism, the notion that someday Supreme Court Justices would write originalist decisions was patently absurd. Two weeks ago, I would have said that it was almost impossible that the Supreme Court would have more than one (maybe two if you count Alito) originalist Justice in the next few years--perhaps in decades. As a practical matter, the originalist project requires originalist Justices on the Supreme Court. And that depends on the appointments process. And that depends on politics. And not just politics, but the accidents of history as well.

But even if it were the case that originalism will never gain the ascendency, that does not entail the conclusion that originalism as a normative constitutional theory is worthless. Normative theories can have power even in dissent. My wonderful colleague Michael Seidman's project of making the case for transparent radical constitutional skepticism is unlikely to gain traction on the Supreme Court. If the appointment of even one originalist Supreme Court Justice was very unlikely, then the appointment of a Justice who says, "The constitution is just a symbol like the flag; I will disregard it when I decide constitutional cases," is more than just a black swan-more like a flock of black swans who can dance the Charleston while they sing Leonard Cohen songs. But the extreme unlikelihood of the public embrace of radical constitutional skepticism does not make the skeptic's project unimportant. Questions about what we should do are very important--even when we do what we should not. Radical perspectives can illuminate and deepen debates that otherwise are shallow. There is nothing like a radical idea to shake up the echo chamber of received opinion.

SOMEWHAT RELATED: Also at Legal Theory Blog, from the Legal Theory Lexicon: Vagueness and Ambiguity. (Very important concepts and no one does them better than Professor Solum).

11/22/2016

Even as there has never been a greater opportunity to reshape the judiciary, it has never been more imperative. The mainstream legal culture runs ever more swiftly left. As a result, that current is likely to sweep along judges who are not anchored on the right. Justices David Souter and Harry Blackmun are famous examples, but many lower court Republican judges have drifted as well.

Thus, if the Trump administration is to remake the judiciary it must choose candidates from the conservative legal counterculture rather than rely on successful lawyers of Republican leanings who happen to know a Senator. Legal academics are often the best bet. Their academic paper trail can no longer trigger a Democratic filibuster but their past commitments provide the best guarantee of future fidelity. And there is no doubt that academics appointed to the circuit courts have been the most influential judges. For instance, Judge Frank Easterbrook of the Seventh Circuit has been cited a standard deviation more than almost any other judge on the federal appeals court. ...

So a good candidate would be a mid-career legal academic with a prominent history of defending originalism ... I agree, of course.

What some may not know, however, is [Judge Gorsuch's] deep commitment to the original understanding of the constitution and the rule of law. As Adam Feldman of Empirical SCOTUS puts it, “he regularly uses originalist principles in his decisions” and thus merits classification “as a heavy originalist based on the originalist indicators in his decisions.” He not only faithfully applies originalist methodology but articulately explains why our constitutional design remains relevant—and critical—over two hundred years later. If the President-elect’s goal is to replace Justice Scalia with someone who will carry the flag of originalism and teach it to the next generation through engaging opinions, public speeches (see, e.g., Law’s Irony and Of Lions and Bears, Judges and Legislators), and the honest hard work it requires, the choice is Judge Gorsuch.

I know the judge’s commitment to originalist principles first hand. Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources. “We need to get this right,” was the motto—and right meant “as originally understood.” I can think of no one better to carry on Justice Scalia’s legacy and, in the words of Justice Thomas, “to stand firm in the defense of the constitutional principles and structure that secure our liberty.”

While Judge Gorsuch’s originalism is not confined to any one corner of the Constitution (Krueger, Carloss, Williams, to name a few other excellent opinions in other areas) some of his most impressive work has come in the arena of administrative law. This post examines three of Judge Gorsuch’s recent and noteworthy administrative law opinions, with an eye toward the rigorous originalism that motivated them. ...

These cases will give you a very good idea of where he stands; and I think that cases like Prion and Hernandez are important as the outcomes cut against traditional "conservative" outcomes (Prion finds a double jeopardy violation and Hernandez found right to preliminary hearing for certain misdemeanants).